Exhibit 8.1
July 9, 2003
Health Care REIT, Inc.
One SeaGate
Suite 1500
Toledo, Ohio 43604
Re: Federal Income Tax Consequences
Ladies and Gentlemen:
We have acted as special tax counsel to Health Care REIT, Inc., a
Delaware corporation (the "Company"), in connection with the issuance and sale
of 4,000,000 shares of 7-7/8% Series D Cumulative Redeemable Preferred Stock,
par value $1.00 per share (the "Preferred Stock"), pursuant to a prospectus
supplement dated June 11, 2003 ("Prospectus Supplement") to the prospectus dated
December 7, 2001 (collectively, the "Prospectus") included in the Company's
Registration Statement on Form S-3 (File No. 333-73936) (the "Registration
Statement"), filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. You have requested our opinion regarding
certain U.S. federal income tax matters in connection with the filing of the
Registration Statement. Certain capitalized terms used herein without definition
are as defined in the Registration Statement.
In giving this opinion, we have examined the following:
- the Certificate of Designation of 7-7/8% Series D Cumulative
Redeemable Preferred Stock of Health Care REIT, Inc., dated
July 8, 2003;
- the Second Restated Certificate of Incorporation, as amended,
of the Company;
- the Amended and Restated Bylaws of the Company;
- the Company's Annual Report on Form 10-K for the year ended
December 31, 2002;
- the Prospectus;
- the taxable REIT subsidiary election for HCRI Tucson Inc.; and
Health Care REIT, Inc.
July 9, 2003
Page 2
- such other documents as we have deemed necessary or
appropriate for purposes of this opinion.
In connection with the opinions rendered below, we have assumed with
your consent that:
1. Each of the documents referred to above has been duly authorized,
executed and delivered; is authentic, if an original, or is accurate, if a copy;
and has not been amended;
2. During its taxable years ended December 31, 1998 through December
31, 2002, the Company has operated, and, in future taxable years, the Company
will operate, in a manner that has caused or will make, as the case may be, the
factual representations relating to the ownership, operation, future method of
operations, and compliance of the Company with the real estate investment trust
("REIT") provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Treasury Regulations (the "Regulations") thereunder, as in
effect as of the date hereof, contained in a certificate, dated July 9, 2003 and
executed by a duly appointed officer of the Company (the "Officer's
Certificate"), true for such years;
3. The Company will not make any amendments to its organizational
documents after the date of this opinion that would affect its qualification as
a REIT under sections 856-860 of the Code for any taxable year; and
4. No action will be taken by the Company after the date hereof that
would have the effect of altering the facts upon which the opinions set forth
below are based.
In our capacity as special tax counsel to the Company, we have made
such legal and factual examinations and inquiries as we have deemed necessary or
appropriate for purposes of our opinions rendered below. For the purposes of
rendering these opinions, we have not made an independent investigation of the
facts set forth in any documents delivered to us, including, without limitation,
the Officer's Certificate. We have relied completely upon the Company's
representations that the information presented in such documents accurately
reflects all material facts. In the course of our representation of the Company,
we have not been made aware of any facts inconsistent with such factual
representations. In addition, where such factual representations involve terms
defined or used in the Code, the Regulations, published rulings of the Internal
Revenue Service (the "Service") or other relevant authority, we have explained
such terms to the Company's representatives and are satisfied that the Company's
representatives understand such terms and are capable of making such factual
representations.
Health Care REIT, Inc.
July 9, 2003
Page 3
Based on the Code, Regulations, documents, assumptions and statements
set forth above, the factual representations set forth in the Officer's
Certificate and our review of the discussion in the Prospectus under the
captions "Additional U.S. Federal Income Tax Considerations" and "REIT
Qualification" and the discussion in the Company's Annual Report on Form 10-K
for the year ended December 31, 2002 under the caption "Taxation," we are of the
opinion that:
(a) the Company qualified to be taxed as a REIT pursuant to
sections 856 through 860 of the Code for its taxable years ended
December 31, 1998 through December 31, 2002, and the Company's
organization and current and proposed method of operation will enable
it to continue to meet the requirements for qualification and taxation
as a REIT under the Code for all future taxable years; and
(b) the descriptions of the law and the legal conclusions
contained in the Prospectus under the captions "Additional U.S. Federal
Income Tax Considerations" and "REIT Qualification" and in the
Company's Annual Report on Form 10-K under the caption "Taxation,"
fairly summarize the federal income tax considerations that are likely
to be material to a holder of the Preferred Stock.
We will not review on a continuing basis the Company's compliance with
the documents or assumptions set forth above, or the factual representations set
forth in the Officer's Certificate. Accordingly, no assurance can be given that
the actual results of the Company's operations for any given taxable year will
satisfy the requirements for qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and
the Regulations, published administrative interpretations thereof and published
court decisions and assume that none of these will change. No assurance,
however, can be given that the law will not change in a way that will prevent
the Company from qualifying as a REIT.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not acknowledge that we
are in the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder by the SEC. The foregoing opinions are limited to the U.S. federal
income tax matters addressed herein,
Health Care REIT, Inc.
July 9, 2003
Page 4
and no other opinions are rendered with respect to other federal tax matters or
to any issues arising under the tax laws of any other country, or any state or
locality. We undertake no obligation to update the opinions expressed herein
after the date of this letter. This opinion letter may not be distributed, or
quoted in whole or in part, or otherwise reproduced in any document, or filed
with any governmental agency, in each case without our express written consent.
Very truly yours,
/s/ Arnold & Porter
ARNOLD & PORTER